STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLYMOUTH DEVELOPMENT, LTD., )

)

Appellant, )

)

vs. ) CASE NO. 88-0912

)

CITY OF CLEARWATER, )

)

Appellee, )

)

FINAL ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Cynthia I. Rice, Esquire, of Clearwater, for Appellant. Miles A. Lance, Esquire, of Clearwater, for Appellee.

This case was heard in Clearwater on April 21, 1988. The Appellant, Plymouth Development, Ltd., (Plymouth) appeals from the decision of the Clearwater Development Code Adjustment Board (DCAB) denying Plymouth's application for a variance from City parking standards.

FINDINGS OF FACT

1. On November 19, 1987, Plymouth, by and through its representative, Todd Pressman, filed an application for a variance of 1'4" in the parking standards of the Clearwater Land Development Code to permit some double row 90-degree parking with an aisle in between having an overall width of 60'8" in Plymouth's parking garage located at 2590 U.S. 19 North, Clearwater, Florida 33575. The variance would reduce the size of 28 out of 500-520 parking spaces in the garage from 19' to 17'8".

   
   

2. On February 11, 1988, a public hearing on Appellant's application was held before the DCAB. Minutes of the hearing were kept and a tape recording of the hearing was made.

   
   

3. The tape recording and minutes of the February 11, 1988, hearing reveal that the DCAB heard the testimony of John Richter, the Clearwater Land Development Code Administrator; Todd Pressman, representing the Applicant; and Keith Crawford, the Director of Traffic Engineering. The Building Department Official did not comment on the variance application. No letters were introduced in support of the application and no letters were introduced in opposition.

   
   

4. At the conclusion of said public hearing, DCAB unanimously voted to deny Plymouth's application for the requested variance.

5. The parking garage in question, the only totally private parking garage in Clearwater, was designed and approved as part of plans to build two office buildings. During planning, Plymouth's New Jersey architect made a mistake which resulted in some 28 parking spaces being substandard. Large columns supporting the structure were designed to be placed in the end of parking stalls along the wall, reducing the useful length of these parking stalls by 1'4". The City Traffic Engineer brought the matter to Plymouth's attention. Plymouth asked to be allowed to designate the 28 spaces for compact cars only but was informed that Clearwater's code did not recognize compact car parking spaces. Plymouth proceeded with full knowledge that the parking garage would be built with 28 substandard spaces.

   
   

6. Plymouth compromised and agreed with the City of Clearwater during construction of its twin-tower office buildings and parking garage to preserve green space on the property, to provide a park-like effect around the three structures, and to preserve the green space and park-like effect of the property fronting on U.S. Highway 19.

   
   

7. The parking garage, even without the 28 spaces, can accommodate the entire parking needs of the two buildings that already have been approved. So far, only one has been built, and only 25 percent-30 percent of it is occupied. As a result, roughly 85 percent of the usable parking spaces (i.e., excluding the 28 substandard spaces) are not being used at this time.

   
   

8. Plymouth's primary concern is not for the parking needs of the existing building, or even for the needs of the second building which has been approved but not built, but for yet a third building which a prospective customer is interested in having Plymouth build. Without the 28 spaces, some land planned to be kept as open space might have to be used for additional parking. Plymouth is concerned that complications involving parking might cause it to lose the prospective lessee. On-site covered parking has been a selling point for Plymouth and is particularly important in Plymouth's north Clearwater/Dunedin market.

   
   

9. A parking garage co-owned by the City on Park Street has columns in some parking stalls which the City is using as parking spaces without a variance. But the columns are in the corners of the affected parking stalls and do not reduce the effective length of the stalls in the judgment of the City Engineer.

   
   

   CONCLUSIONS OF LAW

   
   

10. On appeal from the DCAB decision on a variance application, the appellant has the burden to show that the decision cannot be sustained by the evidence or that the decision departs from the essential requirements of law. Clearwater Land Development Code, Section 137.013(f)(3).

11. Clearwater Land Development Code, Section 13.012(d), provides: standards for approval. A variance shall

    not be granted by the development code adjustment board unless the application and evidence presented clearly support the following conclusions:

    1. The variance requested arises from a condition which is unique to the property in question and is neither ordinarily or

       uniformly applicable to the zoning district nor created by an action or actions of the property owner, predecessor in title, or the applicant. Any mistake made in the execution of a building permit or work performed without the benefit of a permit shall not be considered to be situations which support the granting of a variance.

    2. The particular physical surroundings, shape or topographical

       conditions of the property involved and the strict application of the provisions of this development code would result in an unnecessary hardship upon the applicant.

    3. The variance is the minimum necessary to overcome the unnecessary hardship referred to in preceding recital "2" for the purpose of making reasonable use of the land.

    4. The request for a variance is not based primarily upon the desire of the applicant to secure a greater financial return from the property.

    5. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.

    6. The granting of the variance will not impair an adequate supply of light or ventilation to adjacent property, detract from the appearance of the community, substantially. increase the congestion in the public streets, increase the danger of fire, endanger the public safety in any way, or substantially diminish or impair the value of surrounding property.

    7. The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community.

    8. The granting of the variance desired will not violate the general spirit and intent of this development code.

       
       

12. The DCAB decided that Plymouth's application and evidence did not clearly support the conclusions required by Section 137.012(d) for grant of a variance. The DCAB decision was supported by the evidence and did not depart from essential requirements of law. Plymouth has no current hardship; it has ample parking for its existing office tower and enough for the twin tower that has been approved for construction. If it had a hardship, it would be a hardship of its own making--its New Jersey architect's error, and its decision to proceed after the City advised it of the design error affecting parking. In any event, the purpose of the variance primarily is financial.

    
    

13. The merit of Plymouth's equal protection argument is dubious. Assuming its merit, the issue is reserved for the courts, not this proceeding.

DISPOSITION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is ordered that the appeal of Plymouth Development, Ltd., be dismissed.

DONE AND ORDERED this 6th day of June, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1988.

COPIES FURNISHED:

Cynthia I. Rice, Esquire Richards Building

1253 Park Street

Clearwater, Florida 34616

Miles A. Lance, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 34618-4748

Docket for Case No: 88-000912

Orders for Case No: 88-000912